Citation Nr: 0116037
Decision Date: 06/12/01 Archive Date: 06/18/01
DOCKET NO. 01-02 265 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Whether new and material evidence has been received to reopen
a claim for revocation of forfeiture of VA benefits.
ATTORNEY FOR THE BOARD
N. Pflanz, Associate Counsel
INTRODUCTION
The veteran had active service from December 1941 until his
death in May 1942.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a decision of the Manila, Republic of
the Philippines, Department of Veterans' Affairs Regional
Office (RO), in which the RO denied the appellant's request
to reopen her claim for revocation of forfeiture of VA
benefits.
FINDINGS OF FACT
1. In a November 1974 decision, the VA determined that the
appellant had forfeited her right to VA benefits. In a June
1978 decision, the Board determined that the forfeiture was
proper.
2. In an April 1997 decision, the Board found that the
evidence submitted in support of the appellant's petition to
reopen was not material and did not have any bearing on
whether she presented false and fraudulent evidence in
support of her claim for death benefits.
3. The evidence submitted in support of the appellant's
current petition to reopen is not material and does not have
any bearing on whether she presented false and fraudulent
evidence in support of her claim for death benefits.
CONCLUSIONS OF LAW
1. The April 1997 Board decision is final. 38 U.S.C.A.
§ 7104 (West 1991); 38 C.F.R. § 20.1100 (2000).
2. The evidence submitted since the Board's April 1997
decision is not new and material; thus, the appellant's
request for revocation of forfeiture of VA benefits is not
reopened. 38 C.F.R. §§ 3.156, 20.1104 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initial Matters
The Board observes that the Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA)
appears to have left intact the requirement that an appellant
must first present new and material evidence in order to
reopen a previously and finally denied claim under
38 U.S.C.A. § 5108 before the Board may proceed to evaluate
the merits of that claim.
In the January 2001 statement of the case, the RO informed
the appellant that in order to reopen a claim, new and
material evidence must be presented. The RO also specified
what evidence constitutes new and material evidence.
Therefore, the VA has fulfilled this duty.
Factual Background
In a decision dated in July 1954, the VA determined that
based upon a field examination report, the appellant could no
longer be considered an unremarried widow of the veteran.
Her death pension benefits were discontinued. In a decision
dated in November 1974, the VA found that the appellant had
knowingly submitted false evidence through a written
statement dated in March 1971 and in testimony in April 1974.
Specifically, she had submitted a statement and had testified
to a VA field examiner to the effect that she had never
remarried or lived as if she were married after the death of
the veteran. Because the overwhelming weight of the evidence
at that time indicated that the appellant had continued to
live with J.C. as man and wife as late as 1971, the VA
concluded that the appellant's knowingly false statements
warranted forfeiture of any entitlement to VA monetary
benefits that she might otherwise have had. In a decision
dated in June 1978, the Board determined that the forfeiture
declared against the appellant was proper. At the time of
the Board's June 1978 decision, the record included evidence
from the 1954 field investigation; the appellant's March 1971
statement; the April 1974 testimony before a VA field
examiner, and statements from neighbors obtained during the
April 1974 VA field investigation.
In August 1994, the appellant sought to re-open her claim for
revocation of forfeiture of VA benefits. In March 1995, she
submitted a joint affidavit from two individuals who stated
that J.C. stopped visiting the appellant in 1972. She also
submitted a statement dated in March 1995 in which she stated
that she and J.C. had not had a relationship since 1973. The
appellant subsequently submitted a joint statement dated in
August 1995, in which the individuals stated that they were
neighbors of the appellant and that they knew she had not
remarried after the death of the veteran. The RO also
received in August 1995, a statement from the local civil
registrar's office that indicated there was no record of
marriage between the appellant and J.C. between 1954 and
1971. In a decision dated in April 1997, the Board denied
the appellant's request to re-open her claim for revocation
of forfeiture of VA benefits. At the time of the Board's
April 1997 decision, the record included the March 1995 joint
affidavit; the appellant's two statements both dated in March
1995 statement; the August 1995 joint statement; and the
August 1995 statement from the local civil registrar's
office. The Board denied her motion for reconsideration in
December 1997. In August 1998, the United States Court of
Veterans Appeals (known as the United States Court of Appeals
for Veterans Claims (Court) subsequent to March 1, 1999)
dismissed her appeal for lack of jurisdiction.
In October 1999, the appellant sought to reopen her claim.
In letters dated in October 1999 and May 2000, she stated
that her new evidence was in a case decided by the Court. In
August 2000, the RO informed the appellant that she could not
reopen her claim by simply noting similarities between her
case and another case. In September 2000, the appellant
submitted the death certificate of J.C., who died in February
1998. In October 2000, the RO informed the appellant that
the death of J.C. had no bearing upon the forfeiture of the
appellant's VA benefits. In February 2001, the appellant
perfected her appeal to the Board.
Finality/New and Material Evidence
Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim
may be reopened when new and material evidence is presented
or secured with respect to that claim. Knightly v. Brown,
6 Vet. App. 200 (1994). The evidence presented since the
last final denial on any basis (either upon the merits of the
case, or upon a previous adjudication that no new and
material evidence had been presented), will be evaluated in
the context of whether there is new and material evidence.
Evans v. Brown, 9 Vet. App. 273 (1996).
New and material evidence is defined as evidence not
previously submitted to agency decision-makers that bears
directly and substantially upon the specific matter under
consideration; which is neither cumulative nor redundant; and
which, by itself or in connection with evidence previously
assembled, is so significant that it must be considered in
order to decide fairly the merits of the claim.
38 C.F.R. § 3.156(a).
In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the
Federal Circuit noted that new evidence could be sufficient
to reopen a claim if it could contribute to a more complete
picture of the circumstances surrounding the origin of a
veteran's injury or disability, even where it would not be
enough to convince the Board to grant a claim. In
determining whether there is new and material evidence, the
Board must consider the reasons for the prior denial.
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
Forfeiture of Benefits
Any person who knowingly makes or causes to be made or
conspires, combines, aids, or assists in, agrees to, arranges
for, or in any way procures the making or presentation of a
false or fraudulent affidavit, declaration, certificate,
statement, voucher, or paper, concerning any claim for
benefits under any of the laws administered by the Secretary,
shall forfeit all rights, claims, and benefits under all laws
administered by the Secretary. Fraud is defined as an act
committed in perpetration of one of the above-listed actions.
See 38 U.S.C.A. § 6103(a) (West 1991) (formerly 38 U.S.C. §
3503(a)).
Analysis
In November 1974, the RO informed the appellant that because
she had knowingly made false statements, she had forfeited
any entitlement to VA monetary benefits that she might
otherwise have had. In a June 1978 decision, the Board
determined that the forfeiture was proper. In April 1997,
the Board denied the appellant's request to re-open her claim
for revocation of forfeiture of VA benefits because she had
failed to submit new and material evidence. This is the last
final decision regarding this case. Since this decision, the
appellant submitted only nonmaterial evidence that does not
bear upon the claim for revocation of forfeiture of VA
benefits.
The evidence is not new and material because it does not bear
directly and substantially upon the specific matter under
consideration and is not so significant that it must be
considered in order to decide fairly the merits of the claim.
See 38 C.F.R. § 3.156(a). Additionally, none of the evidence
submitted contributes to a more complete picture of the
circumstances surrounding the forfeiture of the appellant's
VA benefits. See Hodge, 155 F.3d at 1363.
In essence, the appellant's arguments to reopen her claim are
that because of the death of J.C. in February 1998, there is
no impediment to her receiving VA benefits. However, the fact
that J.C. is now deceased is not material to the issue of
revocation of the forfeiture previously declared against the
appellant. The benefits were forfeited because she had
presented knowingly false evidence concerning a relationship.
The fact that J.C. is now dead does not make her prior
statements any less false. The Board finds that no new and
material evidence has been submitted in support of the
appellant's claim, therefore the claim is not reopened.
ORDER
The claim for revocation of forfeiture of VA benefits is not
reopened.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals